BOARD DATE:	  18 July 2013

		DOCKET NUMBER:  AR20130010527 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, through his Member of Congress, reconsideration of his earlier request that he be granted an active duty medical extension (ADME) for the period 15 January through 11 August 2005 with entitlement to all back pay and allowances.  

2.  The applicant did not provide a statement.  However, the applicant's Member of Congress states:

	a.  According to the applicant's application for correction of military records, he requested the approval of an ADME for the period between 15 January and 11 August 2005, with entitlement to all back pay and allowances as a result of a left knee injury he suffered while serving on active duty in the U.S. Army Reserve (USAR).  The applicant believes that he was denied ADME due to his Division  G-1 withholding information and medical records from the U.S. Army Human Resources Command (HRC) and the Office of the Surgeon General (OTSG).  The applicant contends that Colonel A----, the 95th Division Surgeon, cleared him to mobilize with the full knowledge that he was scheduled for surgery on his knee.  The applicant also contends that participating in pre-mobilization activities between December 2004 and January 2005 further aggravated his injury.  Additionally, the applicant contends that he was unable to return to his civilian occupation, as he was informed by his Division G-1 he would be subject to punishment under the Uniform Code of Military Justice.  Subsequently, he was not cleared by the Army to return to his civilian job until August of 2005, hence the application for ADME for the period between 15 January and 11 August 2005.
	b.  He (the Member of Congress) has enclosed a number of documents provided to his office by the applicant to highlight his concerns regarding the Board's denial of the applicant's previous application.  Further, it is noted that the Boards denial states that "On 15 April 2005, [Applicant] underwent surgery to his right knee by a civilian orthopedic surgeon."  However, medical records from the applicant indicate that the prior injury and subsequent surgery were for his left knee.  The Board also incorrectly states the applicant had surgery on 15 January 2005 and he was not cleared for work until 12 August 2008.  However, the applicant had surgery on 15 April 2005 and he was cleared to work in August 2005.  An explanation of these inconsistencies and misinformation are included in this Record of Proceedings.

3.  The applicant provides Congressional correspondence and the prior Record of Proceedings with attachments. 

CONSIDERATION OF EVIDENCE:

1.  Incorporated herein by reference are military records which were summarized in the previous consideration of the applicant's case by the Army Board for Correction of Military Records (ABCMR) in Docket Number AR20130003369, on 19 March 2013.

2.  The applicant did not provide any new evidence.  However, his Member of Congress provides a new argument.  This new argument is considered new evidence and as such warrants consideration by the Board. 

3.  According to Personnel Policy Guidance for Military Personnel, the ADME Program is designed to voluntarily place Reserve Component (RC) Soldiers on temporary active duty to evaluate or treat their service-connected medical conditions or injuries so that they may be returned to duty within their respective RC as soon as possible.  To be eligible for ADME, a Soldier must have incurred or aggravated an in-line-of-duty (ILOD) service-connected injury, illness, or disease while in an Inactive Duty for Training (IDT) or non-mobilization active duty status, i.e., annual training or active duty for training.  The medical condition must prevent the Soldier from performing his or her military occupational specialty (MOS) within the confines of a DA Form 3349 (Physical Profile) issued by military medical authorities.

4.  Having had prior service, the applicant enlisted in the USAR on 9 April 1991 and he held MOS 11B (Infantryman).  He served through multiple extensions or reenlistments in the USAR and he was promoted to sergeant first class (SFC)/E-7 on 1 March 2004. 

5.  His records contain a DD Form 689 (Individual Sick Slip), dated 18 July 1991, that shows he was treated at sick call for a twisted knee and he was placed on light duty.

6.  He performed duties of assistant instructor and/or instructor with the:

* 4th Battalion, 95th Training Support Brigade, 95th Division and/or the U.S. Army Reserve Force School, North Little Rock, AR
* 3rd Battalion, 95th Division in Albuquerque, NM
* 2nd Battalion, 379th Regiment, Arkadelphia, AR

7.  His records contain a DA Form 2173 (Statement of Medical Examination and Duty Status), dated 1 July 1993, which shows he was teaching map reading to a class of basic trainees on 29 June 1993.  He came off a platform to answer a trainee's question, but when he returned to the platform he twisted his left leg which resulted to an injury to his left knee.  

8.  On 29 July 1993, a LOD investigation was reviewed for completeness at Fort Sill, OK, for an injury to the applicant's left knee while performing duties as an instructor.  The injury was determined to be in ILOD.

9.  He received multiple Noncommissioned Officer Evaluation Reports (NCOERs) between 1993 and 2004 that show his/he:

* Performance was rated "Success" and "Fully Capable" by his rater
* passed the Army Physical Fitness Test (APFT)
* met height and weight standards
* potential was rated "Successful" and "Superior" by his senior rater
* profile did not affect or hinder his duty performance

10.  On 7 March 2004, he attempted to lift one side of a desk that was subsequently discovered to be stuck to the floor.  He sustained an injury after he felt a pop in his lower back.  He found it difficult to stand or sit down the next day. When he arrived at his drilling unit the following day, he was advised to report the injury to his unit administrator, but he did not think it was unnecessary.  However, by lunch time, he believed he needed to see a doctor. 

11.  In October 2004, he received an annual NCOER covering the rating period November 2003 through October 2004 for his duties as Assistant Operations NCO with the 2nd Battalion, 379th Regiment.  This NCOER shows he/his:

* was rated "Success/Excellence" and "Fully Capable" by his rater
* physical profile that did not affect or hinder his duty performance 
* met the height and weight standards
* rated "Successful" and "Superior" potential by his senior rater

12.  In November 2004 he discussed surgery on his left knee with a civilian doctor (Dr. D.C. B-----).  On 17 December 2004, he was issued a permanent physical profile by the 95th Division of "122111" in his PULHES for chondromalicia of left knee with Baker's cyst (benign swelling behind the knee joint) and status post-right shoulder repair with limitations of no prolonged strenuous impact activities involving use of his right shoulder and left knee.  The profile listed the functional limitations of:

* no prolonged strenuous impact activities involving use of right shoulder or left knee 
* continued follow up recommended for surgical correction of Baker's Cyst

13.  On 20 December 2004, Headquarters, 95th Division (Institutional Training) Oklahoma City, OK, ordered him to active duty for a period of 534 days in support of Operation Enduring Freedom.  He was ordered to report to the 95th Division in Oklahoma City, OK, with a subsequent reassignment to Fort Hood, TX for mobilization. 

14.  On 13 January 2005, Headquarters, III Corps, Fort Hood, TX, published orders ordering his release from active duty by reason of physical disability effective 14 January 2005.  He was issued a DD Form 220 (Active Duty Report) capturing his 20 days of active duty between 26 December 2004 and 14 January 2005. 

15.  On 24 February 2005, he visited his civilian doctor (Dr. D.C. B-----) in Little Rock, AR.  The doctor stated the applicant was back in his office after having not been seen since November.  The applicant had been seen twice in the fall for a problem with his knee and a cyst.  He had a follow-on magnetic resonance imaging scan that showed a multiloculated synovial cyst in his fat pad.  He had been evaluated out of state but he continued to have significant problems.  

16.  On 21 March 2005, he returned to his civilian doctor (Dr. D.L. H----) for a follow up.  His condition had gotten worse recently.  He had increasing pain and increased swelling.  His assessment was that of a multiloculated ganglion in the fat pad of the left knee.  The doctor discussed an arthroscope of the knee. 

17.  On 15 April 2005, he underwent surgery to his knee by a civilian orthopedic surgeon, Dr. D.C. B----.  His operative report shows his preoperative diagnosis was that of Grade II chondromalacia of the patella with trochlear changes and a ganglion cyst in the anterior compartment of the knee in the fat pad.  The procedure performed was as follows:

* arthroscopy of the knee, debridement of the degenerative disc disease patellofemoral compartment microfracture technique to trochlear groove and partial cyst excision of the knee
* arthrotomy of the knee with excision of ganglion cyst anterior knee

18.  On 11 May 2005, he presented to the Family Practice Clinic, Little Rock, AR, for disposition in regard to his incapacitation fitness for duty statement.  The doctor noted the applicant had occasional effusions.  He was still unable to do any deep knee squatting and there was no change to the physical profile he received at Fort Hood, TX.  

19.  In October 2005, he received an annual NCOER covering the rating period November 2004 through October 2005 for his duties as a Senior Instructor with the 2nd Battalion, 379th Regiment.  This NCOER shows he:

* was rated "Success " and "Fully Capable" performance by his rater
* did not take the APFT
* met the height and weight standards
* rated "Successful" and "Superior" potential by his senior rater

20.  On 13 December 2005, by memorandum, HRC – Alexandria, VA, disapproved the applicant's claim for ADME because there was insufficient evidence to show his pre-existing injury was aggravated or that he was seen by a physician during the period 26 December 2004 to 15 January 2005.  The official added that the applicant was released from active duty under the 25-day rule due to being unfit due to a pre-existing condition.  

21.  On 12 January 2006, he appealed the disapproval of his ADME request.  He stated:

* he aggravated his pre-existing condition at the mobilization site, Fort Hood, TX, between 26 December 2004 and 15 January 2005
* the doctor at Fort Hood told him they no longer had surgical services and he was referred to a civilian orthopedic provider
* the Fort Hood doctor referred him to Dr. D.C. B-----, in Arkansas; this doctor was one of the Little Rock Air Force Base providers
* Dr. D.C. B---- examined his knee on 24 February 2005 and outlined how his knee condition had deteriorated and that due to the delay in the surgery, he no longer felt the knee could be corrected arthroscopically; it now requires incision
* Dr. D.C. B---- saw him on 21 March 2005 after having received approval from the [TRICARE Management Activity] Military Medical Support Office and outlined the preoperative diagnosis on 15 April 2005 

22.  In March 2006, he received a change of rater NCOER covering the rating period October 2005 through March 2006 for his duties as a senior instructor with the 2nd Battalion, 379th Regiment.  This NCOER shows he was:

* rated "Success " and "Fully Capable" performance by his rater
* passed the APFT
* met the height and weight standards
* rated "Successful" and "Superior" potential by his senior rater

23.  On 27 July 2006, he again corresponded with HRC regarding his ADME request.  He stated Colonel (Dr.) T. A----, the 95th Division Surgeon, had cleared him for mobilization effective 26 December 2004 with the full knowledge that he (the applicant) was scheduled for left knee surgery on 3 January 2005.  He also stated that:

* Dr. D.C. B----, the surgeon, made it clear that the knee was unstable and would not tolerate military activities, unfamiliar terrain, and that because of his knee condition he should be around readily accessible medical facilities. 
* the delay in surgery, caused by mobilization, from 3 January to 15 April 2005, caused increased permanent damage to his knee  

24.  On 8 November 2006, by memorandum, HRC – Alexandria officials informed the applicant that his request for ADME was not favorably considered by the Office of the Surgeon General.

25.  On 13 December 2006, by memorandum, HRC – St. Louis denied the applicant's request for ADME and informed him that his request was denied because of insufficient evidence to show he was qualified to receive ADME.

26.  On 28 February 2007, by letter, the local Inspector General recommended the applicant apply for incapacitation pay through his unit as a form of compensation and advised him to provide supporting documents to his unit administrator no later than 2 April 2007 in order for his request to be forwarded to the 90th Regional Readiness Command for an Incapacitation Board scheduled for 27 April 2007.  However, on 25 March 2007, the applicant requested an extension of the suspense due to his inability to obtain the necessary documents from his physician.

27.  In March 2007, he received an annual NCOER covering the rating period April 2006 through March 2007 for his duties as a Senior Instructor with the 2nd Battalion, 379th Regiment.  This NCOER shows his:

* overall performance was rated "Success " and "Fully Capable" by his rater
* received a profile that did not hinder the performance of his duties
* met the height and weight standards
* potential was rated "Successful" and "Superior" by his senior rater

28.  It appears that in early April 2009 the applicant was considered by either an MOS/Medical Review Board (MMRB) or an informal physical evaluation board (PEB).  The results of neither are available for review with this case.  It also appears he was found unfit for duty in the USAR with a 0-percent (0%) disability rating.  

29.  On 8 April 2007, the applicant appealed the MMRB or the PEB decision and attended a formal hearing with a Staff Judge Advocate representative at Fort Sam Houston, TX.  The board upheld the findings of the previous board.

30.  On 8 May 2007, a formal PEB convened at Fort Sam Houston, TX.  The formal PEB found the applicant's condition of left knee pain chondromalacia range of motion limited by pain prevented him from reasonably performing the duties required of his grade and military specialty and determined that he was physically unfit.  He was rated under the Department of Veterans Affairs Schedule for Rating Disabilities and granted a 0% disability rating.  The formal PEB recommended the applicant's separation with entitlement to severance pay, if otherwise qualified. 

31.  On 18 May 2007, the applicant indicated he did not concur with the formal PEB finding and recommendation and elected to submit a rebuttal.  In his rebuttal statement, he stated:

* his rating should be at 10% as the medical evidence and his testimony showed he had both knees and the right shoulder
* he was not suffering from mere pain; he had invasive surgery as a direct result of an approved LOD for injuries that were sustained while on active duty
* he was not afforded the opportunity to present medical evidence nor were his right and left knees fully examined when he had his fit for duty physical
* the injury to his right shoulder was aggravated during military training after a January 1997 surgery
* he was given a permanent physical profile for his shoulder as a result of an injury that was aggravated ILOD
32.  On 21 May 2007, the applicant again pursued ADME in lieu of incapacitation pay and received a memorandum from a PEB indicating the PEB reviewed his rebuttal, found no new objective evidence, and would not grant him the extension or consider new evidence.

33.  On 25 May 2007, after considering and noting the applicant's disagreement with the formal PEB's finding and recommendation, the U.S. Army Physical Disability Agency (USAPDA) advised him that the formal PEB correctly applied the rules that govern the Army Physical Disability Evaluation System in adjudicating his case.  As such, the USAPDA approved the findings and recommendations of the PEB.  

34.  The applicant was transferred to the Retired Reserve effective 21 June 2007 and he was advised he could apply for retirement benefits at age 60, in accordance with Title 10, U.S. Code, section 1209.

35.  On 4 June 2007, by letter to the applicant's Member of Congress, the Deputy Chief, Assistance Division, Office of the IG, stated:

* HRC – Alexandria denied the applicant's request for ADME on 
8 November 2006 and HRC – St. Louis also denied his request on 
13 December 2006
* on 28 February 2007, the local IG advised him to apply for incapacitation pay, if qualified, and gave him a suspense of 2 April 2007 to submit the necessary paperwork to his unit administrator so it could be presented during the 27 April 2007 Incapacitation Board
* on 27 March 2007, he requested an extension to the 2 April 2007 suspense
* on 9 April 2007, the unit received the results of his medical board          (i.e., PEB) which found him unfit with a 0% disability rating
* on 8 May 2007, he appealed the PEB decision with Staff Advocate General representation but the PEB upheld the decision
* on 21 May 2007, he received the PEB memorandum that the PEB had considered his rebuttal but did not find new objective evidence to reverse its decision

36.  Department of Defense Instruction (DODI) Number 1241.2, dated 30 May 2001, implemented the Reserve Component Incapacitation System Management Program and implements policies, assigns responsibilities, and prescribes procedures to authorize medical and dental care for members of the Reserve Components who incur or aggravate an injury, illness, or disease in the LOD and provide pay and allowances to those members while being treated or recovering from a service-connected injury, illness, or disease or who demonstrate a loss of earned income as a result of an injury, illness, or disease incurred or aggravated in the LOD.  Payment in any particular case may not be made for more than 6 months without review of the case by the Secretary concerned to ensure that continuation of military pay and allowances is warranted under this instruction and to determine whether the member should be referred to the Disability Evaluation System.

37.  The current version of Army Regulation 135-381 (Incapacitation of Reserve Component Soldiers), applies to Soldiers of the USAR and the Army National Guard of the United States, including those serving on active duty under the provisions of Title 10.  A member of the RC incurring or aggravating any injury, illness, or disease in the LOD is entitled to medical and dental care, incapacitation pay, and travel and transportation incident to medical and/or dental care, in accordance with Title 37, U.S. Code, sections 204 and 206.  The worsening of a pre-existing medical condition over and above the natural progression of the condition as a direct result of military duty is considered an aggravated condition.  Commanders must initiate and complete the LOD investigations despite a presumption of not in LOD.  Not in LOD determination can be made only with a formal LOD (FLOD) investigation.  Paragraph 2-1b(2)(a) states that Soldiers on active duty for a period of 30 days or less may with the Soldier’s consent be continued on active duty while the Soldier is being treated for, or recovering from, an injury, illness, or disease incurred or aggravated in the LOD.  Chapter 2 states that RC Soldiers who incur or aggravate an injury, illness, or disease while participating in training may be treated in a medical treatment facility or be provided medical care elsewhere at Government expense.  Soldiers are authorized follow up medical care for injury, illness, or disease incurred or aggravated ILOD after completion of active or inactive duty training.

38.  Department of the Army Warrior Transition Unit Consolidated Guidance (Administrative) states, in pertinent part, that the ADME program is designed to voluntarily place Soldiers on temporary active duty, to evaluate or treat RCs with ILOD service-connected medical conditions or injuries, and to return Soldiers back to duty within his or her respective RC as soon as possible.  If return to duty is not possible, the Soldier will be processed through the Army Physical Disability Evaluation System.  The medical condition incurred or aggravated must have occurred while in an Individual Duty for Training or non-mobilization active duty status and medical care will extend beyond 30 days.  The medical condition must prevent the Soldier from performing his or her MOS within the confines of a physical profile issued by military medical authority.  An MMRB must determine that the Soldier is eligible for ADME.  In all cases, a Soldier must be found unable to perform his or her MOS within the confines of a physical profile to enter or continue in the ADME program.

DISCUSSION AND CONCLUSIONS:

1.  On 29 June 1993, as the applicant returned to the platform after answering a trainee's question, he twisted his left leg which resulted in an injury to his left knee However, he continued to serve for the next 10 to 12 years with no problems or issues as evidenced by his multiple reenlistments and/or successful NCOERs. 

2.  He was mobilized in December 2004.  However, upon arriving at Fort Hood, TX, he was determined non-deployable due to a pre-existing medical condition, and he was demobilized and returned to his unit.  

3.  He underwent a surgical procedure to his knee after demobilization.  From that point on, he communicated with military and civilian officials regarding an ADME.  However, nothing he provided then and nothing he provides now shows he qualified for this program.  

4.  The key element in the ADME program is that a Soldier must have incurred or aggravated an ILOD service-connected injury, illness, or disease while in an IDT or non-mobilization Active Duty status, i.e. Annual Training, Active Duty for Training and the medical condition must prevent the Soldier from performing his or her MOS within the confines of a physical profile issued by military medical authority.  The applicant was mobilized from 26 December 2004 to 14 January 2005.  The evidence provided by the applicant is insufficient to show he incurred or aggravated an injury or an illness during this period that satisfies the requirements for the ADME.  More importantly, his NCOERs all show he was fully capable of performing his duties.

5.  He refers to a shoulder injury that occurred in 2004 but he centers his argument around his knee injury.  He then contends that his surgery was scheduled for 3 January 2005 and the scheduling occurred prior to mobilization – a clear indication that the knee injury was pre-existing.  He then contends his mobilization period from 26 December 2004 to 14 January 2005 aggravated this injury and made his knee worse but fails to produce sufficient evidence in support of this contention.  

6.  His case was considered by a formal PEB which awarded him a 0% disability rating.  He rebutted such findings and recommendations and contended he should have received at least a 10% rating and again contended that both knees and his shoulder were injured. 

7.  Additionally, there is no evidence to show the applicant sustained an injury while on active duty from 26 December 2004 to 14 January 2005, or aggravated a pre-existing condition that rendered him unable to perform the duties required of his grade and military specialty.  The formal PEB, which was conducted in 2007, determined his condition was unfitting.  However, the documents supporting the PEB are not in the record.  The applicant continued to serve, and the natural progression of the condition may have rendered him unfit by 2007. 

8.  As a side note, the Board incorrectly stated in the previous Record of Proceedings that the applicant underwent surgery on his right knee on 15 April 2005.  While the operative report does not specifically state which knee, it is clear that the surgery was on the left knee and the original Board's statement regarding the right knee is a harmless error. 

9.  Based on the available evidence, there appears to be no basis to grant his request for ADME.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

____X___  ___X___  ___X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case
are insufficient as a basis to amend the decision of the ABCMR set forth in Docket Number AR20130003369, dated 19 March 2013.



      _______ _ _X _______   ___
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20130010527



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ABCMR Record of Proceedings (cont)                                         AR20130010527



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